The Minnesota Supreme Court in May recognized “loss of chance” as an actionable injury under Minnesota tort law for the first time, embracing a doctrine variously adopted in 22 other states. Time will tell how broadly this doctrine may be applied and what its costs and benefits may be.

On May 31, 2013, the Minnesota Supreme Court issued a 3-2 plurality decision that allows patients to recover damages for loss of chance of recovery or survival when a medical professional’s negligence meaningfully reduces those chances—even if the predicted harm never occurs and even if the predicted harm was more likely than not to occur regardless of the negligence. The decision represents a shift in the medical malpractice (and tort) law of this state and has potentially wide-ranging consequences for medical professionals who have traditionally been liable only when a plaintiff could demonstrate that it was more probable than not that the harm she had suffered was caused by the defendant’s negligence rather than by some other cause (like an underlying medical condition). Nevertheless, there are some built-in limits on the expansion of the doctrine and its impact remains to be seen.

The Dickhoff Case1

Joseph and Kayla Dickhoff sued Dr. Rachel (Green) Tollefsrud and her family practice clinic (the “doctors”) on behalf of their young daughter, Jocelyn, alleging that Dr. Tollefsrud had failed to timely refer Jocelyn for diagnosis of what turned out to be a rare and aggressive form of childhood cancer.

The Dickhoffs claimed that at Jocelyn’s first well-baby visit, Mrs. Dickhoff pointed out a small lump on Jocelyn’s buttock to Dr. Tollefsrud who said she thought it might be a cyst and would monitor it. Mrs. Dickhoff says that she also discussed the lump with Dr. Tollefsrud at Jocelyn’s two-, four-, six-, and nine-month well-baby visits. By the one year visit, the lump had grown and changed and Dr. Tollefsrud noted it on Jocelyn’s chart and referred her to a specialist. Shortly thereafter, Jocelyn was diagnosed with alveolar rhabdomyosarcoma (ARS), which had metastasized and progressed to an advanced stage.

The Dickhoffs provided expert affidavits from two medical doctors who opined that Dr. Tollefsrud had departed from the accepted standard of care for family practice doctors in Minnesota and that her failure to promptly diagnose Jocelyn’s cancer had decreased Jocelyn’s chances of survival from well over 60 percent to 40 percent

The treatments Jocelyn experienced would have occurred regardless of the delayed diagnosis, and the district court held that the costs of those treatments could not be recovered. Shortly before trial, Jocelyn’s cancer recurred, and the Dickhoffs claimed future medical bills and pain and suffering related to recurrence as damages and sought to recover for the “deprivation of [Jocelyn’s] normal life expectancy.” The district court granted the doctors’ motion to dismiss Jocelyn’s life expectancy claim, holding that it was a “a claim for loss of chance of life” not recognized by Minnesota law and because the Dickhoffs had not provided sufficient expert testimony that the doctors’ alleged negligence—rather than the cancer itself—had caused Jocelyn’s cancer to recur.2

Breaking New Ground

The Dickhoffs appealed to the Minnesota Court of Appeals which reversed and held that a “patient states a malpractice claim based on a failure to diagnose if the misdiagnosis makes it more probable than not that [the patient] will not survive her cancer,” even if “a physician’s contribution to an already bleak prognosis is not large but just enough to make death most likely.” The court of appeals also concluded that the Dickhoffs had submitted sufficient evidence that the doctors’ alleged negligence had caused Jocelyn’s recurrence to allow the case to be decided at trial.3

The doctors sought supreme court review. A three justice plurality of the Minnesota Supreme Court (with two justices dissenting and two taking no part) 4 held that “Minnesota law permits recovery for ‘loss of chance’ in a medical malpractice action … . [A] physician harms a patient by negligently depriving her of a chance of recovery or survival and should be liable for the value of that lost chance.”5 Thus, a lost chance caused by a medical provider’s negligence is a distinct injury for which a patient may seek damages. To be actionable, the diminution of chance must be more than “token” or “de minimis.” But the testimony of the Dickhoffs’ expert would demonstrate that Jocelyn’s harm—20 percent less chance of survival than if she had been diagnosed a year earlier—was more than de minimis.6

The supreme court affirmed plaintiffs’ traditional burdens to prove causation and damages to a reasonable degree of certainty and acknowledged that, despite the opportunity the court opened to pursue loss-of-chance damages, the Dickhoffs would “face an uphill battle in proving the existence of the injury and causation.”7

Although not necessary to the ruling, the court adopted the proportional-recovery approach to valuing lost-chance damages. Assuming a jury finds that a medical provider was negligent and that her negligence materially reduced the patient’s chances for a better outcome, the jury would then be asked to determine the percentage by which the chance of a favorable outcome was reduced by the provider’s negligence and the total value of the predicted injury or death. Lost-chance damages are then calculated as: “the total amount of damages recoverable is equal to the percentage chance of survival or cure lost, multiplied by the total amount of damages allowable for the death or injury.”8

The court gave this example:

[A]ssume that a physician negligently fails to diagnose a patient’s cancer. The patient dies. If the patient had only a 40 percent chance of survival before the medical malpractice, but the physician’s negligence reduced her chance of survival to 0 percent, then the physician should be liable for 40 percent of the damages, or the portion of the value that the defendant’s negligence destroyed. If the fact-finder determines that total damages for the patient’s death are $100,000, then the patient’s loss of chance damages would be $40,000.9

Two justices dissented, arguing:

The majority disregards [a] cardinal principle [of tort law] and introduces speculation by concluding that a physician may be liable for harms not directly caused by the physician’s negligence, but caused by the patient’s underlying disease. In so doing, the majority sua sponte overrules long standing precedent and upsets an unbroken tradition of tort law in this state … . Although the Dickhoffs do not characterize it as such, I agree with the majority that this is a quintessential ‘loss of chance’ claim. But in light of our precedent, I disagree with the majority’s conclusion that a loss of chance claim is cognizable in Minnesota. We have explicitly rejected loss of chance as a theory of recovery in two cases, and we are bound by that precedent. Fabio v. Bellomo, 504 N.W.2d 758 (Minn.1993); Leubner v. Sterner, 493 N.W.2d 119 (Minn.1992). The majority overrules these decisions without either party requesting that we do so, and without providing any compelling justification for the abandonment of our precedent.10

On June 10, 2013, the doctors petitioned the supreme court to rehear the case, arguing that because the Dickhoffs had expressly and repeatedly disclaimed a loss-of-chance theory and no party or justice had questioned the “non-viability” of that theory under Minnesota law, it was fundamentally unfair for the court to decide the case based on that theory.11

On or about July 7, 2013, seven-year-old Jocelyn passed away.

On September 6, 2013, the supreme court denied the petition for rehearing. The case has returned to the district court where, in light of Jocelyn’s passing, it will proceed not on the new loss-of-chance theory but as a wrongful death case under Minn. Stat. §573.02.12

Loss of Chance in Minnesota

Prior to Dickhoff, the loss-of-chance doctrine had been adopted in various forms in 22 other states.13 The doctrine is meant to address the perceived problems with the traditional “all or nothing” tort law approach to causation and injury. Among these is the de facto immunity of health care providers who are negligent in their treatment of patients with less than even odds of survival at the time of care. Since, under traditional tort law, a plaintiff must prove that the defendant’s negligence more likely than not caused her injury, a plaintiff who already had less than a 50 percent chance of survival or recovery due to the underlying ailment could rarely recover for additional harm done by the provider’s negligence.14

States implement loss-of-chance in roughly two ways. The first is to relax the standards for proving causation.15 The second is to recognize a loss of chance as a distinct injury for which damages may be recovered if proved under traditional burdens of proof and causation standards. The Minnesota Supreme Court adopted the second approach.

Thus, the elements of a medical malpractice claim are unchanged by Dickhoff. A patient still bears the burden to prove by a preponderance of evidence “(1) the standard of care recognized by the medical community as applicable to the particular defendant’s conduct, (2) that the defendant in fact departed from that standard, and (3) that the defendant’s departure from the standard was a direct cause of [the patient’s] injuries.”16 The court explained that:

Under our view of the loss of chance doctrine, a patient retains the burden of proving by the traditional preponderance of the evidence standard that the physician’s negligence substantially reduced the patient’s chance of recovery or survival. Therefore, our approach to the loss of chance doctrine is consistent with our enduring approach to causation in medical malpractice cases.17

What is new is that the patient may now recover for a materially reduced chance of a favorable outcome (in addition to any recoveries for medical expenses and pain and suffering) that results from a medical provider’s negligence as a distinct injury. And Minnesota’s version of the loss-of-chance doctrine is somewhat distinctive in that it does not require that the unfavorable outcome (usually death) ever occur or even that its occurrence be certain.18

Indeed, once a person has died a loss-of-chance claim can no longer be maintained in Minnesota. Minn. Stat. §573.01 provides that any cause of action that arises out of a personal injury dies with the person, except an action for wrongful death under Minn. Stat. §573.02. The Dickhoffs themselves acknowledge that Jocelyn’s death “changes [the controversy’s] character under Minn. Stat. §573.02.”19

Thus, medical providers can now be liable for the increased risk of a bad outcome that may, in fact, never occur. And they can be liable for a reduction in the chance of a good outcome even when it is more likely than not that a good outcome would not have been achieved regardless of any negligence on their part.

What About Causation?

As noted above, the Dickhoff plurality repeatedly affirmed the court’s continued commitment to the plaintiff’s traditional burden to prove that “the defendant health care provider’s negligence more likely than not caused the claimed injury.”20 That commitment works conceptually when the causation inquiry is limited to the discrete loss-of-chance injury defined by the court, i.e., the percentage of reduction of the chance of a better outcome attributable to the provider’s negligence. However, in a perplexing sentence at the end of the opinion, the court stated that the Dickhoffs’ expert opinion that Dr. Tollefsrud’s negligence had increased the likelihood of recurrence by about 20 percent was sufficient to get the Dickhoffs past summary judgment as to the medical treatment expenses related to recurrence.21 The court did not explain how the Dickhoffs could demonstrate to a jury that it was more likely than not that Dr. Tollefsrud’s negligence had caused the recurrence of Jocelyn’s cancer when their causation expert was prepared to opine only that Dr. Tollefsrud had caused 20 percent of the chance of recurrence. Nor did the court discuss how that ruling fits with the court’s commitment to traditional causation burdens. Like other aspects of the opinion, the effects of this ruling will undoubtedly be the subject of development in lower court opinions in coming days. It seems probable that any inconsistency will be resolved in favor of the patient’s duty to prove that her injuries were more likely than not caused by her medical providers’ negligence.

Potential Scope

The Dickhoff opinion does not address other circumstances in which the loss-of-chance doctrine may apply. The court’s description is fairly broad: “a physician harms a patient by negligently depriving her of a chance of recovery or survival and should be liable for the value of that lost chance.” This language will, no doubt, provide good fodder for creative skirmishes concerning the doctrine’s application to a wide variety of scenarios in which a provider’s alleged negligence in diagnosing, referring, treating, prescribing, or the like materially reduces the patient’s chance of some better outcome. There has been some speculation within the bar concerning whether loss of chance is even limited to the medical malpractice context. For example, could a lawyer who missed a statute of limitations on a case with a 30 percent chance of success be liable under the loss-of-chance doctrine for the client’s 30 percent lost chance? Only time will tell, but the expansion of the doctrine as adopted in Minnesota has some inherent limitations.

First, its vitality will be questioned based on the manner of its adoption. As noted previously, Dickhoff is a plurality opinion with a strong dissent, and its author, Justice Paul Anderson, retired the day the opinion was filed. Moreover, as noted by the doctors’ lawyers in the Petition for Rehearing, the decision was not informed by briefing or argument on the risks and benefits of the loss-of-chance doctrine because both sides understood that Minnesota had rejected the loss-of-chance doctrine in Fabio v. Bellomo, 504 N.W.2d 758 (Minn.1993) and Leubner v. Sterner, 493 N.W.2d 119, 122 (Minn.1992).

Second, the loss-of-chance doctrine will be limited by the ability of experts to reliably identify and quantify loss of chance. As the Dickhoff plurality noted:

The longstanding proof problem associated with loss of chance claims was that it was difficult, if not impossible, to prove causation for a loss of chance injury. In that sense, we are not recognizing a new injury as such. Rather, we are recognizing that an injury that has always existed is now capable of being proven to a reasonable degree of certainty. As a result, the reliability of the evidence that victims of medical malpractice are able to marshal when a physician’s negligence reduces a patient’s chance of recovery or survival has dramatically improved in recent years—now making it possible to prove causation in a loss of chance case.22

A likely outcome of the doctrine’s adoption, therefore, is an increase in Frye-Mack challenges to the scientific acceptance and reliability of efforts to identify and quantify loss of chance.

Finally, the loss-of-chance doctrine in this country has been largely limited to the medical malpractice context and the supreme court seemed to assume this limitation.

Conclusion

Under Dickhoff, medical professionals are now subject to liability for an injury no other profession is accountable for—the increased risk of an unfavorable outcome. Common sense suggests that recognition of a new actionable injury will increase the number of claims, the amount of malpractice insurance premiums, and the cost of care to patients. The supreme court plurality discounted the likelihood of these outcomes, pointing to a law review article that analyzed certain data in states that have adopted the loss-of-chance doctrine and concluded that there was no significant increase in claims or insurance premiums in at least some of those states.23 Only time will really tell how far the loss-of-chance doctrine will expand and what its benefits and costs will be.

Sarah Bushnell is of counsel to the Minneapolis law firm of Arthur Chapman Kettering Smetak & Pikala PA and is cochair of the firm’s Professional Liability Group. An alumna of the Harvard Law School, she focuses her practice in the areas of professional liability, business and employment litigation, appellate law, and arbitration.

8 Following are suggested questions for the special verdict form on a loss-of-chance claim:

1. If you answered Yes to Question 1 [negligence/breach of the standard of care], then answer this question: Has Plaintiff’s probability of survival been reduced as a direct result of the Defendant’s negligence? _______ (Yes or No)

2. If you answered “Yes” to question 2, then answer this question: By what percentage has Plaintiff’s chance of survival been reduced as a direct result of Defendant’s negligence? _______%

3. In the event Plaintiff does not survive, what amount of money is necessary to fairly compensate Plaintiff’s heirs for his loss of life? $________

12See,Respondent Dickhoff’s Memorandum in Support of Motion to Strike Petitioners’ Motion for Leave to Provide Supplemental Authority and Alternate Response to Petitioners’ Motion, A11-402 (Minn. 07/22/2013), at 2, 5; available at http://www.arthurchapman.com/aop/professional-liability/.

15See, e.g., Delaney v. Cade, 873 P.2d 175, 183 (Kan. 1994) (“[T]he loss of chance theory is, essentially, one that allows an injured plaintiff to recover damages based upon a reduced standard of causation rather than the traditional one which requires the plaintiff to prove that it is more probable than not that the damage suffered was caused by the negligence of the defendant.”); George J. Zilich, “Cutting Through the Confusion of the Loss-of-Chance Doctrine Under Ohio Law: A New Cause of Action or A New Standard of Causation?” 50 Clev. St. L. Rev. 673, 682 (2003) (“Some courts have relaxed either the standard of proof required or the sufficiency of the evidence called for rather than defining the injury as the loss of chance for a better result.”); Tory A. Weigand, “Loss of Chance in Medical Malpractice: The Need for Caution,” 87 Mass. L. Rev. 3, 8 (2002).

16Dickhoff, 836 N.W.2d at 329 (quotation omitted).

17Id. at 337 (citation omitted).

18Compare, Dickhoff, 836 N.W.2d at 336 with Alice Ferot, “The Theory of Loss of Chance: Between Reticence and Acceptance,” 8 FIU L. Rev. 591, 596-97 (2013) (“Recovery for the loss of chance is contingent upon either the realization of the unfavorable outcome or the certainty that the unfavorable outcome will occur in the future.”) (citing DeBurkarte v. Louvar, 393 N.W.2d 131, 139 (Iowa 1986) and Falcon v. Mem’l Hosp., 462 N.W.2d 44, 52 (Mich. 1990)).

21Id. at 337-38 (“In addition, Dr. Forman’s affidavits state that the delay in diagnosis caused Jocelyn to undergo additional medical treatments based on the recurrence of her cancer that she would not have otherwise undergone.”).